By: Kristofor L. Hanson

The National Labor Relations Board (“Board”) has once again postponed the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, D.C., hearing a legal challenge regarding the rule. We alerted you to this rule and its initial postponement in previous E-Alerts of October 20, 2011 and December 23, 2010.

The new implementation date is April 30, 2012, which coincides with the effective date of the Board’s changes to representation election procedures. The Board’s announcement states that it has determined that postponing the effective date of the rule will facilitate the resolution of the legal challenges that have been filed concerning the rule.

If the selection criterion is challenged by a disabled individual, an employer must also be able to establish that the individual does not meet the standard and is unable to perform the essential functions of the job, even with a reasonable accommodation. In its letter, the EEOC suggested that employers, as a form of reasonable accommodation, consider an applicant’s work history and/or allow the applicant to demonstrate their ability to do the job’s essential functions as part of the application process. However, an employer is not required to prefer a disabled applicant over other applicants who are more qualified.

Under the rule, most private sector employers will be required to post an 11-by-17-inch notice of employee rights. The notice is available at no cost from the Board through its website,

If you have any questions about this material, please contact Kris Hanson or any other attorney you have been working with here at Lindner & Marsack, S.C.

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